Aereo Tells Judge Not to Mind FilmOn Injunction

A week ago, a federal judge in D.C. granted TV broadcasters' motion for an injunction against Alki David's FilmOn X.

Naturally, the broadcasters wanted to share news about the development. In a pending case against Aereo -- the TV digital distributor backed by Barry Diller --notice of the ruling was given. Hearst Stations, owner of ABC affiliate WCVB-TV, told its Massachusetts federal judge what happened.

So on Wednesday, attorneys for Aereo responded with their own interpretation. It represents a look at what one digital service (Aereo) thinks of another (FilmOn) and how Aereo sees the the D.C. judge's interpretation of copyright law.

Eventually there might be a Supreme Court showdown over whether the relaying of over-the-air TV signals to digital devices constitutes a transmission "to the public" and a violation of broadcasters' public performance rights. Until then, Aereo is expanding across the nation and hopes to limit any fallout from the decision to enjoin FilmOn by convincing the judge that last week's ruling isn't "persuasive."

In a response to Hearst's notice of supplemental authority, Aereo compiled a list of reasons why U.S. District Judge Nathaniel Gorton shouldn't put too much importance in what the other judge said.

First, of course, is that the technology is allegedly different.

Aereo's lawyers say that "to the extent the Opinion makes factual findings about the technology used by FilmOn, certain descriptions of the technology do not appear to track how the Aereo technology actually works."

The D.C. judge is also said by Aereo to have misinterpreted copyright law by looking at the commercial nature of an enterprise to determine whether a performance is public or private, misused her terminology ("the Opinion improperly conflates 'work' with 'performance,') and ignored other authorities. Among what was ignored, as allegedly relevant, was a 9th Circuit ruling concerning Dish's ad-skipping Hopper service that emphasized "the importance of the user's volition."

But our favorite reason has to be that the 2nd Circuit knows best.

"The Court acknowledged that its interpretation of the Copyright Act is directly contrary to that adopted by the Second Circuit in both Aereo and Cablevision," says Aereo. "The First Circuit and courts within the First Circuit (including this Court) have repeatedly cited to the Second Circuit on copyright issues."

As to that injunction, the D.C. court yesterday denied Alki David's emergency motion to stay it. According to the opinion, "The only change FilmOn X has identified is that Aereo, its competitor, is not enjoined. But this argument has it backwards: FilmOn X claims that the Preliminary Injunction has created irreparable harm because FilmOnX will not be able to keep pace with a similar service that also appears to infringe Plaintiffs’ copyrights.”